I am now going to discuss with you garden leave. Any employee who is not required to work but is sent home and is still receiving normal salary is on garden leave. This is different to being suspended on pay. You can only suspend on pay when there are investigations into disciplinary matters.

Normally this sort of approach occurs where the employer wants to protect the Company’s position in relation to restrictive covenants. For example, if you have just got a job with a competitor, you give them notice and the employer is concerned to ensure that you do not pass or gain information that could be useful to a competitor. Whilst an employee is on garden leave, he is still subject to the terms of his Contract of Employment because he is still being paid. Therefore, if the employer wishes he can be required to return to work, give information about work or do work on the requirement of his employer.

In lieu of notice

A difficulty occurs in relation to garden leave in distinguishing it against paying someone in lieu of notice which is referred to in shorthand as pilon. When someone is put on notice, the Contract of Employment continues to exist unless they are paid in lieu of notice. Paying someone in lieu of notice is paying them up to the completion of the Contract normally for the notice period and that effectively terminates the Contract on the day that someone is told that they are no longer required to be an employee and are paid in lieu of notice. Paying in lieu of notice releases the employee immediately and means their effective date of termination will be the date the notice is given whereas putting someone on garden leaves means they continue during the period of notice to be an employee and subject to the Contract of Employment.

There have been a number of cases where someone is put on garden leave for a long period, particularly if their notice is for more than 3 months. Sometimes, that person’s skills require them to be able to continue to work or their skills will deteriorate.

In conclusion, in relation to garden leave, it is important you obtain advice in relation to what your Terms and Conditions are during garden leave for example, you are not permitted to obtain other work or do other work while you are on garden leave because you are acting in breach of your Contract of Employment by doing so.